Reciprocity Dilemma for the Obama Administration in Kiobel: Will the Administration Serve up Sauce for the Gander?

As I have noted previously, the Supreme Court’s March 5 order that the Kiobel case be re-briefed to address the extraterritorial application of the Alien Tort Statute has put the Obama Administration in a difficult position if it wishes to continue to support the plaintiffs, for at least three reasons.

First, and most difficult, if the Administration argues to the Supreme Court that the ATS applies to torts in other countries, and that extraterritorial application is consistent with international law, the Administration would be unable to complain about the exercise of universal civil -- or criminal -- jurisdiction by other countries over U.S. nationals and U.S. corporations. The U.S. has long objected to the universal criminal jurisdiction laws of Spain, Germany, Belgium, and other European countries, as applied to the actions of U.S. government and military officials. If the Obama Administration supports extraterritorial application of the ATS, the Administration’s brief would be thrown back in the face of the State Department if it tried to object to prosecutions or lawsuits against U.S. military personnel, or other U.S. officials or U.S. defense contractors, for their military or intelligence activities (such as the use of drones) in third countries such as Afghanistan, Pakistan, Yemen, or Somalia. Of course, the U.S. could still object that the specific prosecution or civil suit was politically motivated or unsupported by evidence, but the U.S. would have lost an important legal argument against the improper exercise of extraterritorial jurisdiction. One can understand the policy desire by some to provide a U.S. legal venue for lawsuits against foreign human rights abusers. But what is sauce for the goose is sauce for the gander. And there are a lot of litigious ganders in foreign countries who object to U.S. military and intelligence activities.

Second, in order to argue that the ATS applies to torts committed in other countries, the Administration would have to reverse or distinguish the position taken by the Bush Administration in nine extensively argued briefs between 2003 and 2008, including three briefs before the Supreme Court (including in the Sosa case). The Bush Administration, in briefs signed both by me and my predecessor Will Taft, argued that the Alien Tort Statute was never intended to apply extraterritorially. The Obama Administration would need to explain why these briefs were legally incorrect. The Solicitor General may be reluctant to do this. Some have suggested that the Solicitor General could argue that the Executive branch is simply reverting to the position of the Carter and Clinton Administrations in Filartiga and Kadic. However, in their briefs supporting the plaintiffs’ ATS claims in those cases, the Carter and Clinton Administrations never argued that the ATS applies extraterritorially.

Third, to argue now that the ATS applies extraterritorially, the Obama Administration would have to disagree with the international law positions of many of its closest allies. At least a dozen foreign governments, including Australia, Canada, Germany, the United Kingdom, have filed more than twenty briefs or diplomatic protests objecting to the extraterritorial application of the ATS to the actions of their nationals, their corporations, or their governments. These briefs and protests have stated that the ATS goes well beyond accepted international law rules governing civil jurisdiction. Germany, the United Kingdom, and the Netherlands all filed briefs in support of Shell in the Kiobel case, arguing that the ATS should not be applied to torts committed in foreign countries. At least three judges of the International Court of Justice have also expressed skepticism about the Alien Tort Statute. In the Congo Arrest Warrant case, Judges Higgins, Kooijmans, and Buergenthal (the latter is a well-respected American human rights lawyer) commented that “[w]hile this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of states generally.” In order to support the plaintiffs, the Administration would need to explain why the international law views of these countries, and of the ICJ judges, are incorrect.

The new briefing schedule in Kiobel is as follows: The Petitioners’ (Kiobel) brief is due June 1; the Petitioners’ amici briefs are due June 13; Shell’s brief is due August 1; and Shell’s amici briefs are due August 8. (And to repeat a previous disclosure, I have filed a brief on behalf of several companies in support of Shell in the first briefing round.)

John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter LLP in Washington, DC. He is also Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009, as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House from 2001–2005, and as Counsel for National Security Matters in the Criminal Division of the Department of Justice from 1997–2001.